Krishan Kumar alias Krishan & Anr. vs State of Haryana

Surinder Singh, J.

Krishan Kumar alias Krishan aged 19 years and Balwant aged 18 years, were convicted by Sessions Judge, Bhiwani, under section 366, Indian Penal Code, and were sentenced to three years Rigorous Imprisonment, each. They have appealed.

On July 26, 1983 at about 8 P.M., Sheelan Devi (PW 7) the prosecutrix left her house in order to ease herself at some distance. When she reached near the chaupal of Chamars, she saw a car standing with both the appellants present nearby. It is alleged that the two appellants forcibly removed her into the car and drove away. According to her, she had raised alarm but it was ineffective as there was nobody nearby. The matter was reported to the Police by Ram Sarup (PW 5) father of the prosecutrix two days later, i.e. July 28, 1983. The prosecutrix was recovered from a place known as Sardool Shehr in Rajasthan State on August 8, 1983. The two appellants were prosecuted under sections 363 and 366, Indian Penal Code, with the result already indicated.

From the evidence produced by the prosecution, particularly the opinion of the Radiologist, the age of the prosecutrix is between 17 and 19 years with a margin of variation to the extent of three years on either side. The date of Birth as given in the Certificate issued by the Teacher of the School where the prosecutrix studied, is January 2, 1970, but according to the Headmistress Smt. Nirmal Kumari (PW 6), this date was mentioned merely on the statement of Ram Sarup father of the prosecutrix. The latter witness deposed during the trial in a vague manner that "She was born in the year 1970 or something like that, but I do not remember the date." A similarly vague statement has been made by the mother of the girl. In these circumstances, the trial Court had rightly considered the prosecutrix to be not a minor. This being so, the question of consent becomes quite relevant.

The only important aspect for consideration is whether the testimony of the prosecutrix can be accepted at its face value. According to her, on the day of occurrence her mother and younger brother were present at the house when she left at about 8 p.m. to ease herself. She claimed that she raised alarm at the time the two appellants put her in the car forcibly, but it is not possible to believe her on this point, as the time of the occurrence was not a late hour of the night. In her crossexamination, she admitted that there were houses opened in the Chowk. She further admitted that the light was on in those houses, meaning thereby that people were not asleep by then. According to her, she had gone to ease herself at a place about half a Killa from her house. She also deposed that she had asked her mother to accompany her but she told her that she should go alone. She was confronted with her statement made before the Police to the effect that she had informed her mother that she was going to urinate only, but later felt the necessity of easing herself. About her journey in the car she conveniently deposed that the moment she had boarded the car, she had lost `hosh'' and when she regained `hosh'' she found herself in a room along with the two appellants where she was kept for 14/15 days. Krishan Kumar appellant alone is said to have committed sexual intercourse with her during these days. She also admitted that there was a bath room outside the room in which she had been kept, but stated that she had never gone to that bathroom to take bath. According to her one of the accused would always remain with her while the other would go and take his bath. This statement made by the prosecutrix does not inspire confidence at all. In fact, it gives a clear impression that she had gone with the appellants of her free will and accord.

On the question of consent, the prosecutrix deposed that she had tried to raise alarm when she was removed by the appellants. She also claimed that during the period of 14/15 days when she remained with the appellants in a room, she did not try to escape or call for help. On both these points, she has been falsified by the remaining prosecution evidence. Her brother Ajit (PW 5) stated that two other Taxi drivers were present at the time, when she was abducted, but they did not intervene. The trail Court has not given importance to this discrepancy. On the second point, the trial Court observed that being in a `foreign land'' it would be futile to expect her to make an attempt to escape or call for help. This again is not a satisfactory explanation on the conduct of the prosecutrix. The fact that the prosecutrix was a consenting party to the whole affair is, therefore, quite apparent.

In the result, this appeal is allowed and the conviction and sentence imposed upon the appellants by the trial Court are set aside. They are acquitted of the charge framed against them. They are on bail and their bail bonds stands discharged.